DOE v. THE TRUSTEES OF INDIANA UNIVERSITY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

JOHN DOE, )

)

Plaintiff, )

)

v. ) No. 1:20-cv-02006-JRS-MJD

)

THE TRUSTEES OF INDIANA )

UNIVERSITY, )

INDIANA UNIVERSITY SCHOOL OF )

MEDICINE, )

INDIANA UNIVERSITY KELLEY )

SCHOOL OF BUSINESS, )

GREGORY KUESTER in his official and )

individual capacity, )

BRADLEY ALLEN in his official and )

individual capacity, )

JAY HESS in his official and individual )

capacity, )

INDIANA UNIVERSITY PURDUE )

UNIVERSITY INDIANAPOLIS, INDIANA, )

)

Defendants. )

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY

JUDGMENT

On May 20, 2019, Indiana University Purdue University Indianapolis ("IUPUI")

suspended medical student John Doe for dating violence.1 Doe then applied for the

MBA program at Indiana University's Kelley School of Business ("IUKSB"). But in

preparing his application, Doe misrepresented his disciplinary status. IUPUI noticed

1Plaintiff has been permitted to proceed under a pseudonym to protect his identity. Likewise,

the student who accused him of dating violence is referred to by the pseudonym Jane Roe.

the misrepresentation, notified Doe's medical school—Indiana University School of

Medicine ("IUSM")—of it, and on June 16, 2020, IUSM expelled Doe.

Doe brought this action against IUSM, Indiana University ("IU"), the Trustees of

IU, IUKSB, IUPUI, IUSM Dean Jay Hess, IUSM Senior Associate Dean Bradley

Allen, and former Title IX investigator Gregory Kuester, in their individual and

official capacities (collectively "Defendants"). Doe alleges a violation of Title IX of the

Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq., and a deprivation of

procedural due process, cognizable under 42 U.S.C. § 1983. Doe seeks damages and

injunctive relief.2 Defendants moved for summary judgment. (Defs.' Mot. Summ. J.,

ECF No. 122.) The parties have fully briefed the issue. (Defs.' Br. Supp. Summ. J.,

ECF No. 124; Pl.'s Resp. Opp'n, ECF No. 128; Defs.' Reply, ECF No. 135.) Doe also

moved for an oral argument on Defendants' motion. (Pl.'s Mot. Oral Arg., ECF No.

129.)

Regarding the due process claim, asserted in Count II of the Amended Complaint,

the Court previously granted in part and denied in part Defendants' Partial Motion

to Dismiss, (Order Mot. Dismiss, ECF No. 140), dismissing with prejudice Doe's due

process claims as against the Trustees, IU, IUPUI, and IUSM; the due process claims

for damages against Dean Hess, Associate Dean Allen, and Kuester in their official

capacities; and the due process claim for prospective injunctive relief against Kuester

in his official capacity. Doe did not assert a due process claim against IUKSB. Thus,

the only due process claims remaining for consideration in this summary judgment

2 On October 29, 2021, Doe withdrew his claim for damages related to psychological and

emotional distress. (Notice Pl.'s Withdrawal Claim, ECF No. 145.)

ruling are (1) the due process claims for prospective injunctive relief against Dean

Hess and Associate Dean Allen in their official capacities, and (2) the due process

claims for damages against Dean Hess, Associate Dean Allen, and Kuester in their

individual capacities. (Order Mot. Dismiss 9, ECF No. 140.) For the following

reasons, Defendants' Motion for Summary Judgment, (Defs.' Mot. Summ. J., ECF No.

122), is granted. Doe's Motion for Oral Argument on Summary Judgment, (Pl.'s Mot.

Oral Arg., ECF No. 129), and Defendants' Motion to Exclude Plaintiff's Damages

Experts or Limit Certain Opinions, (Defs.' Mot. Exclude, ECF No. 147), are each

denied as moot.

I. Background

Given the summary judgment standard, the Court takes the facts in the light most

favorable to Doe. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)

(quotations omitted). As the Court has previously detailed, (Order Mot. Dismiss, ECF

No. 140), Doe entered IUSM and began dating Jane Roe, another student at IUSM,

in October of 2017. (Doe Decl. ¶ 2, ECF No. 70-1; Final Inv. Report 3, ECF No. 87-

13.) Their on-and-off relationship was "at times tempestuous," (Am. Compl. ¶ 119,

ECF No. 8), as evidenced by some relevant examples. In June 2018, Roe struck Doe

several times and threw a flower vase at Doe's head. (Final Inv. Report App. 178–79,

ECF No. 88-16; Final Inv. Report 4, 9, ECF No. 87-13.) Then, in July 2018, Doe and

Roe got into an argument at Roe's father's house. (Doe Decl. ¶ 25, ECF No. 70-1.) As

Doe was leaving the house, he collided with Roe. (Id.) But Roe detailed that Doe

then pushed her through a closed door onto the laundry room floor and that he had

been verbally and physically abusive on other occasions. (Final Inv. Report 3, 5, ECF

No. 87-13; Letter from Gregory Kuester, Title IX Investigator, OSC, to John Doe 1

(Jan. 18, 2019), ECF No. 77-13.) On January 18, 2019, Gregory Kuester, a Title IX

Investigator with IUPUI's Office of Student Conduct ("OSC"), notified Doe that the

OSC was investigating Roe's allegations. (Letter from Gregory Kuester, Title IX

Investigator, OSC, to John Doe 1 (Jan. 18, 2019), ECF No. 77-13.)

After an investigation by Kuester, an OSC hearing panel found Doe, who appeared

before the panel with his counsel, responsible for dating violence in violation of the

Student Sexual Misconduct Policy. (OSC Hr'g Tr. 2–4, ECF No. 81-15; Ferguson Aff.

¶¶ 47–48, ECF No. 70-3.) The panel suspended Doe for one year and imposed

conditions on any potential return to IU. (Letter from Kelly Freiberger, Student

Conduct Coordinator, IUPUI, to John Doe (May 23, 2019), ECF No. 69-6.) Because

the panel found that Doe violated the Student Sexual Misconduct Policy, IUSM's

Student Promotions Committee ("SPC") met with Doe and considered imposing

additional, IUSM-specific sanctions. (Reeser Aff. ¶¶ 6–7, ECF No. 70-8; Letter from

Emily Walvoord, Assoc. Dean for Student Affairs, IUSM, to John Doe (May 24, 2019),

ECF No. 76-7.) After speaking with Doe, the SPC recommended that Doe be

dismissed from IUSM. (Comm. Meeting Mins. 2, ECF No. 78-1.)

Doe appealed the SPC's recommendation to the Dean of IUSM, Jay Hess. (Doe

Dep. 92–100, ECF No. 75-1.) Following a meeting with Doe, Dean Hess decided not

to dismiss Doe. (Id.; Hess. Aff. ¶¶ 29–34, ECF No. 70-5.) Dean Hess's decision letter

to Doe said that Dean Hess was granting Doe's appeal of the dismissal

recommendation, but it added that "[t]o be eligible to return to [IUSM], [Doe] must

complete all the sanctions" outlined by the OSC, as well as the additional conditions

listed in Dean Hess's letter, and noted that "any subsequent violation of academic or

personal codes of conduct" would potentially impact or jeopardize Doe's return in

spring 2021. (Letter from Jay Hess, Dean, IUSM, to John Doe 1 (Mar. 27, 2020), ECF

No. 76-16; Hess Aff. ¶ 34, ECF No. 70-5.) If Doe satisfied those conditions, he could

"apply for reinstatement" to IUSM. (Letter from Jay Hess, Dean, IUSM, to John Doe

1 (Mar. 27, 2020), ECF No. 76-16.)

Two months later, Doe applied to IUKSB's MBA program. (IUKSB Appl., ECF

No. 83-5.) As part of his application, Doe disclosed his disciplinary history, stating

that Dean Hess "overturned the erroneous findings" of the Title IX panel and "fully

authorize[d]" his reinstatement "without limitation or restriction." (Id. at 5–7.) Doe's

disclosure triggered a review by the IUPUI Prior Misconduct Review Committee

("PMRC"). (Email from John Doe to Monica Henry, Assoc. Dir., IUPUI Graduate Off.

(May 21, 2020), ECF No. 69-18.) The PMRC reviewed Doe's application, and wrote

to Doe that "[t]here appear to be inconsistencies between your statement and Dean

Hess's [March 27, 2020 decision] letter." (Email from Monica Henry, Assoc. Dir.,

IUPUI Graduate Off., to John Doe 1 (May 19, 2020), ECF No. 76-18.) Because of this

inconsistency, the PMRC asked Doe for clarification. (Id.)

Doe defended his application in writing. (Id. at 3–4.) After reviewing Doe's

argument, the PMRC concluded that Doe "withheld pertinent information and gave

false or incomplete information." (Email from Monica Henry, Assoc. Dir., IUPUI

Graduate Off., to John Doe (May 29, 2020), ECF No. 76-19.) Thus, the PMRC denied

Doe's IUKSB application and notified Dean Hess of Doe's actions. (Id.; Email from

Monica Henry, Assoc. Dir., IUPUI Graduate Off., to Jay Hess, Dean, IUSM 1 (June

1, 2020), ECF No. 82-11.)

Dean Hess reviewed Doe's application and Doe's explanation of the inconsistency

between it and Dean Hess's actual disposition of Doe's appeal. (Hess Aff. ¶ 39, ECF

No. 70-5; Email from Jay Hess, Dean, IUSM, to Eric Weldy, Vice Chancellor for

Student Affairs, IUPUI (June 10, 2020), ECF No. 83-8.) Dean Hess agreed that Doe

had misrepresented Dean Hess's decision and concluded from the incident that Doe

was unfit to practice medicine. (See Hess Aff. ¶¶ 39, 44–45, ECF No. 70-5; Email

from Jay Hess, Dean, IUSM, to Eric Weldy, Vice Chancellor for Student Affairs,

IUPUI (June 10, 2020), ECF No. 83-8.) Thus, IUSM dismissed Doe effective

immediately. (Letter from Jay Hess, Dean, IUSM, to John Doe 1 (June 16, 2020),

ECF No. 37-21.)

II. Legal Standard

Summary judgment is appropriate if "the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of production.

Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). That initial burden

consists of either "(1) showing that there is an absence of evidence supporting an

essential element of the non-moving party's claim; or (2) presenting affirmative

evidence that negates an essential element of the non-moving party's claim."

Hummel v. St. Joseph Cnty. Bd. of Comm'rs, 817 F.3d 1010, 1016 (7th Cir. 2016)

(citing Modrowski, 712 F.3d at 1169). If the moving party discharges its initial

burden, the burden shifts to the non-moving party, who must present evidence

sufficient to establish a genuine issue of material fact on all essential elements of the

case. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702 (7th Cir. 2009). "A

genuine dispute as to any material fact exists if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party." Daugherty v. Page, 906 F.3d

606, 609–10 (7th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)) (quotations omitted).

The Court must construe the facts and reasonable inferences arising from those

facts in the light most favorable to the non-moving party. See Anderson, 477 U.S. at

255. Doe's brief does not specifically controvert many of Defendants' facts. (Pl.'s

Resp. Opp'n 12–28, ECF No. 128.) Thus, as to Defendants' facts that are asserted,

supported, and not specifically controverted, the Court takes those facts as true. S.D.

Ind. L.R. 56-1(f).

III. Discussion

Doe brings two counts against Defendants. First, he says that Defendants

discriminated against him on the basis of sex, in violation of Title IX, during their

Title IX investigation into him. (Am. Compl. 59, ECF No. 8.) Second, he says that

Defendants deprived him of due process in dismissing him from IUSM over his

IUKSB application. (Id. at 72.) The Court begins with the Title IX allegations.

A. Count I: Title IX

Title IX provides that "[n]o person in the United States shall, on the basis of sex,

be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial

assistance." 20 U.S.C. § 1681(a). The Court must determine whether a reasonable

jury could find that Defendants discriminated against Doe "on the basis of sex" during

any part of Doe's Title IX process.3 Doe v. Purdue Univ., 928 F.3d 652, 667–68 (7th

Cir. 2019). The Seventh Circuit has identified three types of circumstantial evidence

that will support an inference of intentional discrimination: "ambiguous or

suggestive comments or conduct; better treatment of people similarly situated but for

the protected characteristic; and dishonest . . . justifications for disparate treatment."

Joll v. Valparaiso Cmty. Schs., 953 F.3d 923, 929 (7th Cir. 2020) (Title VII case); see

Doe v. Brimfield Grade Sch., 552 F. Supp. 2d 816, 822–23 (C.D. Ill. 2008) (listing cases

and showing that Title VII precedent can generally aid in assessing Title IX claims).

At the outset, the Court notes that Doe has not raised any Title IX arguments

against IUKSB. Doe's Title IX allegations only concern the Title IX process. None of

the decisions made in that process were made by IUKSB. Since Doe has not shown

3 The Parties tend to use "sex" and "gender" interchangeably, (see, e.g., Defs.' Br. Supp. Mot.

Summ. J. 2, ECF No. 124; Pl.'s Resp. Opp'n 8, ECF No. 128), but sex and gender are not the

same, see Gender, Am. Psych. Ass'n Dictionary of Psych., https://dictionary.apa.org/gender

(last visited Jan. 8, 2022) ("Sex usually refers to the biological aspects of maleness or

femaleness, whereas gender implies the psychological, behavioral, social, and cultural

aspects of being male or female (i.e., masculinity or femininity)."). Since nothing in this case

suggests that Doe was discriminated against because of his gender, the Court uses the term

"sex."

a genuine dispute regarding whether IUKSB violated Title IX, the Court summarily

grants summary judgment on Count I for IUKSB.

In an attempt to show discrimination on the basis of sex, Doe points to four

instances of alleged anti-male animus. (Pl.'s Resp. Opp'n 35–40, ECF No. 128.) The

Court addresses each in turn below.

1. Relocation to West Lafayette Campus

First, Doe argues that during the Title IX investigation, IUSM imposed additional,

more stringent restrictions on him, a male, but not on Roe, a female. (Pl.'s Resp.

Opp'n 8, 36, ECF No. 128.) Doe says that both he and Roe had university-sponsored

no contact orders ("NCOs") placed on one another, but despite this similarity, IUSM

relocated him to IUSM's West Lafayette campus for two weeks. (Id.; Email from

Bradley Allen, Senior Assoc. Dean for Med. Sch. Educ., IUSM, to John Doe 2–3 (Apr.

5, 2019), ECF No. 77-17.) Doe argues that the relocation was sex discrimination

because IUSM did not make Roe relocate. (Pl.'s Resp. Opp'n 36, ECF No. 128.) The

Court assumes that the relocation was adverse—since Defendants have not argued

otherwise, although they do note the relocation was not a punitive action—thus, the

Court proceeds to whether the relocation decision was based on sex.

Comparator evidence can raise an inference of discrimination, but the inference is

only reasonable when the comparators are similarly situated. See Coleman v.

Donahoe, 667 F.3d 835, 841 (7th Cir. 2012) (citing Humphries v. CBOCS W. Inc., 474

F.3d 387, 405 (7th Cir. 2007), aff'd, 553 U.S. 442 (2008)) ("In other words, the

proposed comparator must be similar enough to permit a reasonable juror to infer, in

light of all the circumstances, that an impermissible animus motivated the employer's

decision.”). Here, Doe has not shown that he and Roe were similarly situated at the

time the relocation decision was made. Doe claims that he and Roe had "identical"

NCOs imposed on one another when the decision was made, (Pl.'s Resp. Opp'n 36,

ECF No. 128), but that assertion is incomplete if not speculative. While Doe and Roe

both had NCOs imposed on one another after February 20, 2019, before that date,

only Roe had an NCO on Doe. (Allen Dep. 108–09, ECF No. 134-1; Kuester Aff. ¶¶ 13–

14, ECF No. 70-6.) Based on the NCO issued in January 2019 in place only against

Doe and based on Roe's complaint, the planning process to move Doe so he could

complete his training despite the NCO began at that time. (Allen Dep. 109–11, ECF

No. 134-1.) Again, putting aside whether this was a non-punitive accommodation in

his favor rather than a harm to him, and acknowledging that moving both of them

would frustrate any NCO, there is no evidence showing that the plan to move him

was based on his sex or was not made before February 20, 2019. Doe has no evidence

definitively showing that the relocation decision was made after February 20, 2019.

Rather, although communicated in April 2019, Doe has only produced evidence that

the relocation decision was made sometime prior to April 2019, (Allen Dep. 109–10,

ECF No. 134-1), but that only makes it possible that the decision was made while

both Doe and Roe had NCOs. Speculative assertions are not sufficient on summary

judgment. Hamer v. Neighborhood Hous. Servs. of Chi., 897 F.3d 835, 841 (7th Cir.

2018). Since Doe has not provided evidence to reasonably suggest that the relocation

decision was made while he and Roe were allegedly similarly situated, no reasonable

jury could infer that the decision was made on the basis of sex.

Even if Doe and Roe did have dueling NCOs at the time of the relocation decision,

there is a distinguishing characteristic between them: Roe is a complainant in a Title

IX case, while Doe is a respondent. (Defs.' Reply 14, ECF No. 135.) See Doe v.

Trustees of Ind. Univ., No. 1:21-cv-00973-JRS-MPB, 2021 WL 2982186, at *6 (S.D.

Ind. July 15, 2021) ("Doe and Roe are not similarly situated but for their sex. Doe

was accused of sexual misconduct [while] Roe was the accuser."). Thus, they are not

similarly situated, but rather are distinguished as complainant and respondent.

Since Doe and Roe were not similarly situated but for sex, their different treatment

does not give rise to a reasonable inference of sex discrimination.

2. Doe's Allegations against Roe

Second, Doe says that Defendants ignored his allegation against Roe, but pursued

Roe's allegations against him. (Pl.'s Resp. Opp'n 36–37, ECF No. 128.) Specifically,

Doe argues that the OSC knew of Roe's alleged dating violence (stemming from the

June 2018 vase-throwing incident), but did not pursue those allegations. (Id.) Doe

further complains that the Director of the OSC, Sara Dickey, met with Roe and gave

her information on the Title IX process, but did not meet with him or advise him.

(Id.)

As to the disparate investigation argument, Defendants agree that no

investigation was launched against Roe, but they say that was because of their sex-

neutral standard for deciding when to pursue an investigation. (Defs.' Reply 14–15,

ECF No. 128.) Under that standard, if a complainant wants to proceed with a claim,

then an investigation will almost always go forward. (Dickey Dep. 70, ECF No. 72-

1.) But if a complainant does not want to proceed, then the university will weigh

various factors in determining whether to investigate without the complainant's

involvement. (Id.) Defendants say that they applied this standard to both Doe and

Roe, and their different treatment resulted from Roe ultimately wanting to proceed

with an investigation, while Doe did not. (Defs.' Reply 14–15, ECF No. 128.)

When a Title IX defendant provides a legitimate, nondiscriminatory reason for

differential treatment, it becomes the plaintiff's burden to show that the defendant's

reason is pretextual. See Andriakos v. University of S. Ind., 867 F. Supp. 804, 810

(S.D. Ind. 1992), aff'd, 19 F.3d 21 (7th Cir. 1994) (unpublished) (under McDonnell-

Douglas, if a Title IX defendant produces a legitimate nondiscriminatory reason, the

presumption of illegal discrimination dissolves). Here, Defendants have provided a

legitimate nondiscriminatory reason—the OSC's investigation standard.

That standard explains the OSC's investigation decisions here. When the OSC

first learned of the respective allegations, Roe expressed interest in an investigation,

(see Final Inv. Report 2, ECF No. 87-13), while Doe did not, (Kuester Aff. ¶ 57, ECF

No. 70-6; Dickey Aff. ¶¶ 29–30, ECF No. 70-2). Director Dickey testified that the OSC

applied its investigation standard to Doe and concluded that the factors weighed

against opening an investigation. (Dickey Aff. ¶¶ 29–30, ECF No. 70-2; Dickey Dep.

61, ECF No. 75-2.) While both Doe and Roe wavered on their respective decisions at

one point, (Final Inv. Report 2–3, ECF No. 87-13; Email from Sara Dickey, Dir., OSC,

to John Doe 2 (June 26, 2019), ECF No. 83-4), in the end, Roe wanted to proceed and

Doe did not, (Final Inv. Report 2–3, ECF No. 87-13; Email from Sara Dickey, Dir.,

OSC, to John Doe 2 (June 26, 2019), ECF No. 83-4; Doe Dep. 50, ECF No. 75-1). Since

Defendants have offered a legitimate nondiscriminatory reason for their actions, and

since Doe has not presented any evidence to suggest that the stated reason is

pretextual, no reasonable jury could find that the OSC ignored his allegations against

Roe on the basis of sex. Moreover, these facts show that Doe and Roe were not

similarly situated: Roe was interested in a Title IX investigation and Doe was not.

Therefore, no reasonable jury could conclude that Director Dickey discriminated on

the basis of sex.

Doe also argues that Defendants "aggressively pursued" Roe when she was

uncertain about her complaint, but did not give him the same treatment. (Pl.'s Resp.

Opp'n 36–37, ECF No. 128.) Doe's characterization is unsupported. Doe is referring

to the fact that after Roe reported her allegations, Director Dickey had a meeting with

Roe, and Kuester then emailed Roe to set up a follow-up meeting. (Final Inv. Report

2, ECF No. 87-13; Email from Jane Roe to Gregory Kuester, Title IX Investigator,

OSC 1–2 (Nov. 26, 2018), ECF No. 127-22.) When Roe did not respond to the first

email, Kuester sent a short follow-up email, writing, "I am just reaching out to verify

you received my November 19th email (below). Please let me know when you are

available to meet and if you have any questions." (Email from Jane Roe to Gregory

Kuester, Title IX Investigator, OSC 1 (Nov. 26, 2018), ECF No. 127-22.) At that point,

Roe responded and said she did not want to continue with the investigation. (Id.)

There were no further emails from Kuester until Roe later changed her mind two

months later and wanted to open an investigation. Nothing in these emails suggests

that Defendants "aggressively" pursued Roe's allegations.

3. The Title IX Investigation and Hearing

Third, Doe says that during the Title IX investigation, Kuester did not thoroughly

consider Doe's evidence, did not interview five of the eight witnesses Doe identified,

and did not seek the documents Doe requested. (Pl.'s Resp. Opp'n 37–38, ECF No.

128.) But Doe does not tie these alleged omissions to sex. Even if Kuester failed to

consider Doe's evidence, which was included in the Appendix to Kuester's Final

Investigation Report, (ECF No. 88-16 at 1), or did not seek out the people or

documents Doe requested, Doe has not pointed to a similarly situated female

respondent who received better treatment, any biased statements, or any shifting

justifications. See Doe v. Marian Univ., No. 19-CV-388-JPS, 2019 WL 7370404, at

*11 (E.D. Wis. Dec. 31, 2019) (granting summary judgment for a university in a Title

IX case where the plaintiff "did not offer any evidence to connect the way he was

treated with the fact of his [sex]"), aff'd sub nom. Johnson v. Marian Univ., 829 F.

App'x 731 (7th Cir. 2020).

Doe says that Kuester should have interviewed five of the witnesses he

identified—known as Friend E, F, G, H, and I—but Kuester stated that these

individuals could not assist him in assessing the charge against Doe. (ECF No. 70-6

at ¶ 24; ECF No. 81-20 at 9.) Kuester said that these witnesses were duplicative and

would only provide minimal probative value. (ECF No. 81-20 at 9.) Universities and

their investigators are allowed to make relevance determinations in viewing and

collecting evidence, and such determinations can be a legitimate nondiscriminatory

reason. See Doe v. Columbia Coll. Chi., 299 F. Supp. 3d 939, 955 (N.D. Ill. 2017)

(allegations that an investigation excluded evidence did not show sex bias when there

were legitimate truth-seeking reasons for the decisions), aff'd 933 F.3d 849 (7th Cir.

2019). At bottom, this does not show evidence of sex bias.

Doe also takes aim at his Title IX hearing panel. First, he says that the Title IX

panel discriminated on the basis of sex by excluding evidence questioning Roe's

credibility and limiting his questions on cross-examination. (Pl.'s Resp. Opp'n 39–40,

ECF No. 128.) But once again, he identifies no comparator evidence of a female

respondent receiving better treatment. (Id.) Doe only protests that he was not able

to present some facts that would attack Roe's credibility—namely, (1) a false

allegation by Roe that Doe had brought a firearm to campus, which in fact the panel

did allow Doe to address, (ECF No. 80-1 at 36–38), (2) an audio recording of Roe

making inflammatory comments, and (3) an allegation that Roe engaged in university

grant fraud. (ECF No. 128 at 40.) Yet, even if some of the aforementioned evidence

was relevant, its exclusion is still not connected to sex. Without comparator evidence,

biased statements, or dishonest justifications, there is no reasonable inference that

the panel's decision to exclude evidence or limit questions was influenced by anti-

male bias.

But Doe adds that the chair of the panel interrupted Doe's opening statement and

prevented him from continuing. (OSC Hr'g Tr. 33–37, ECF No. 80-1.) But the

transcript he cites belies this assertion. (Id.) During his opening statement, Doe

began to speak about the unsupported firearm allegation Roe made against him, (id.

at 33), but, the panel's chair stopped Doe to ask about the allegation's relevance, (id.).

The panel took a break, and when it resumed, the chair said that Doe could continue

his opening and discuss the firearm allegation. (Id. at 36–37.) Any harm from this

interruption was de minimis, and even if there was prejudice, no reasonable jury

could find the interruption, followed by a resumption, to be discrimination on the

basis of sex.

4. Title IX Trainings

Lastly, Doe argues that his hearing panel was trained to discriminate. (Pl.'s Resp.

Opp'n 38–39, ECF No. 128.) First, Doe says that the panel was instructed to use "the

trauma-informed method," an investigative and adjudicative technique designed to

"prevent inflicting additional trauma on the complainant." (Id. at 38.) Doe claims

that this is synonymous with a pro-female viewpoint. (Id. at 39.) But this method

has no connection to sex, despite Doe's claim to the contrary. Both men and women

can be complainants.

Second, Doe complains that IUPUI's Title IX trainings demonstrate an anti-male

bias. (Id. at 39, 47-48.) But none of the quotes he produces creates a reasonable

inference of bias. Doe first cites the quote; "Supporting the Victim . . . Believe them—

don’t question the story." (Complainant Trauma Presentation 60, ECF No. 73-2.) The

word "victim," however, does not indicate anti-male bias because it does not denote

any sex—both men and women can be victims. See Doe v. Marian Univ., No. 19-CV-

388-JPS, 2019 WL 7370404, at *11 (E.D. Wis. Dec. 31, 2019) ("While their comments

are pro-victim, this does not compel the conclusion that they are also pro-woman, or

anti-man."), aff'd sub nom. Johnson v. Marian Univ., 829 F. App'x 731 (7th Cir. 2020).

Doe's second cited quote, which refers to Indiana University's support for victims,

(Univ. Hr'g Comm'n Sexual Misconduct Training 4, ECF No. 77-7), fails for the same

reason—being pro-victim is not the same as being anti-male.

Doe also quotes from a ninety-one-slide presentation titled "Complainant Trauma

and Respondent Stress." (Complainant Trauma Presentation 1, ECF No. 73-2.) One

slide in that presentation says that "[s]exual assault is an act of dominance . . . [i]t is

the use of a sex act to fulfill the perpetrator’s desire for power/control, revenge,

recreation, proof of masculinity, and/or sexual gratification." (Id. at 6.) Another slide

says that "99% of sexual violence perpetrators are male." (Id. at 8.)

But no reasonable jury could find that this presentation taught bias. For one, the

presentation included only two questionable slides out of ninety-one, the remaining

of which Doe does not challenge as having an anti-male viewpoint. See Doe v.

Williams Coll., 530 F. Supp. 3d 92, 116 (D. Mass. 2021) (the phrase "hostile

masculinity" on two slides out of ninety was insufficient to show anti-male bias).

Moreover, the other slides in this presentation undercut any anti-male sentiment.

See Doe v. Grinnell Coll., 473 F. Supp. 3d 909, 925 (S.D. Iowa 2019) (using male

pronouns to describe perpetrators and listing hypotheticals involving male

perpetrators did not create a genuine issue of material fact regarding sex

discrimination where the trainings also undermined such bias). Doe's highlighted

quotes appear next to statements like "most men are NOT perpetrators" and "~7% of

men are responsible for >90% of sexual assaults." (Complainant Trauma

Presentation 8, ECF No. 73-2.) Other slides describe how men can be victims of

sexual misconduct, and the presentation warns that men are sometimes viewed as

perpetrators even when they are victims. (Id. at 49.) Because of the context around

Doe's cited quotes, no reasonable jury could find that this presentation is evidence of

anti-male bias.

Doe lastly points to an eight-slide presentation titled "Sanctioning Activity."

(Sanctioning Activity 1, ECF No. 73-3.) This presentation walks the audience

through five hypothetical Title IX cases and asks the audience to discuss how they

would sanction the students in the hypotheticals. (Id. at 2.) The hypotheticals make

up a majority of the slideshow and appear to be the main purpose of the slideshow.

(See id. at 2–8.) Doe claims that this presentation indicates bias because every

hypothetical features a male respondent found responsible of sexual misconduct. (Id.

at 3–8.)

Giving a presentation in which every hypothetical involves a male perpetrator

may imply to the listeners that males are more likely to commit sexual misconduct.

It may create an inference of bias on behalf of the speaker. But Doe must produce

evidence that the Title IX panelists who heard this training "acted at least partly on

the basis of sex in his particular case." Doe v. Purdue Univ., 928 F.3d 652, 669 (7th

Cir. 2019) (citing Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018)) (emphasis added).

Here, the nexus is missing. This training occurred at some point in 2018. (See Yost

Dep. 62, ECF No. 84-4.) On May 20, 2019, the panelists presided over Doe's hearing

and made the decisions of which Doe complains above. (OSC Hr'g Tr. 1–3, 18–21,

ECF No. 81-15.) But it is not reasonable to infer that the panel's decisions were based

on sex just because the panelists heard a potentially suggestive presentation in the

past. Since no reasonable jury could find that the panel's decisions were based on

sex, Doe cannot prevail on his Title IX claims. Thus, the Court grants Defendants'

Motion for Summary Judgment as to the Title IX claims.

B. Count II: Procedural Due Process

Doe originally raised a procedural due process claim against all Defendants except

IUKSB. (Am. Compl. 72, ECF No. 8.) In ruling on Defendants' motion to dismiss,

the Court dismissed all due process claims against IUPUI, IU, the Trustees of IU,

and IUSM. (Order Mot. Dismiss 9, ECF No. 140.) Furthermore, in opposing this

summary judgment motion, Doe did not respond to Defendants' arguments that

Associate Dean Allen and Kuester are improper parties for injunctive relief and are

protected by qualified immunity. (Defs.' Br. Supp. Mot. Summ. J. 27–30, ECF No.

124.) Thus, the Court treats those issues as conceded, see, e.g., Alioto v. Town of

Lisbon, 651 F.3d 715,721 (7th Cir. 2011) (forfeiture occurs when a "litigant effectively

abandons [a claim or claims] by not responding to alleged deficiencies" raised in a

motion to dismiss), and grants summary judgment in favor of Associate Dean Allen

and Kuester on the procedural due process claims. Thus, the only remaining due

process claim involves Dean Hess in his individual capacity for damages and in his

official capacity for injunctive relief as relates only to his decision to expel Doe from

IUSM.

The Due Process Clause guarantees certain procedures when a state actor

deprives someone of "life, liberty, or property." U.S. Const. amend. XIV, § 1. When

assessing a procedural due process claim, the Court must (1) identify the protected

property or liberty interest at stake, and (2) determine what process is due under the

circumstances. Charleston v. Board of Trs. of Univ. of Ill. at Chi., 741 F.3d 769, 772

(7th Cir. 2013) (citing Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir. 2003)). Doe

bears the burden of showing that he had a cognizable property or liberty interest. See

Petru v. City of Berwyn, 872 F.2d 1359, 1362 (7th Cir. 1989).

Here, Doe alleges both a property interest and a liberty interest, and argues that

Dean Hess deprived him of such without due process in expelling him from IUSM.

He says that he has a property interest in "pursuing his education and in future

educational and employment opportunities and occupational liberty." (Pl.'s Resp.

Opp'n 20, ECF No. 128.) He also says that he has a liberty interest in "his good name,

reputation, honor, and integrity." (Id.) The Court assumes that Doe has a cognizable

property interest here because Dean Hess has not fully responded to Doe's

argument.4 See Bonte v. U.S. Bank, N. Am., 624 F.3d 461, 466 (7th Cir. 2010) (failing

4 Specifically, Dean Hess did not respond to one of Doe's asserted grounds for a property

interest. Doe says that he has a property interest arising from an implied contract with IU.

(Pl.'s Resp. Opp'n 20–22, ECF No. 128.) In order to have a property interest in an implied

contract, however, "[a] student must first show that the implied contract establishes an

entitlement to a tangible continuing benefit." Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d

599, 602 (7th Cir. 2009). Doe cites two provisions of an IUSM policy for support, (Pl.'s Resp.

Opp'n 21–22, ECF No. 128), but Dean Hess has only argued against one of them, (Defs.' Reply

2–3, ECF No. 135). The unaddressed provision states that "[s]tudents in good standing who

to respond results in waiver). Given that assumption, the Court does not reach Doe's

purported liberty interest and instead proceeds to assessing whether Doe received

due process.

How much process is due depends on whether Doe's dismissal was academic or

disciplinary. See Fenje v. Feld, 398 F.3d 620, 624–25 (7th Cir. 2005). An academic

dismissal occurs when a school dismisses a student based on an "academic" rationale.

See id. at 624 (citing Board of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78,

89–90 (1978)). In the medical school context, if a dismissal is based on "whether a

student will make a good doctor" or whether a student has the personal attributes to

be a good doctor, then the dismissal is academic. See id. (citing Horowitz, 435 U.S. at

89–90). Disciplinary dismissals, on the other hand, are those involving "the violation

by a student of valid rules of conduct or disruptive and insubordinate behavior." Id.

(internal quotations omitted). Disciplinary dismissals are "more objective in nature

and not dependent upon the analytical expertise of professional academicians," and

thus "will bear a resemblance to traditional judicial and administrative factfinding."

Id. at 625 (citing Horowitz, 435 U.S. at 89–90).

have passing grades and evaluation reports automatically advance to the next unit of

instruction." (IUSM Guidelines 3, ECF No. 69-2.) Doe says that this provision gives him an

entitlement to advance to the next semester, since he was in good standing. (Pl.'s Resp. Opp'n

21–22, ECF No. 128.) It is not clear that Doe was in good standing. Various IU committees

had found that Doe violated IUSM and IU policies, (Comm. Meeting Mins. 2, ECF No. 78-1;

Letter from Kelly Freiberger, Student Conduct Coordinator, IUPUI, to John Doe (May 23,

2019), ECF No. 37-7), and Doe had just started his one-year leave of absence from IUSM and

could only return to IUSM upon fulfilling various conditions, (Letter from Jay Hess, Dean,

IUSM, to John Doe 1 (Mar. 27, 2020), ECF No. 76-16). Still, since Dean Hess has not

contested Doe's argument, it is conceded.

If a dismissal is academic, less process is due. Academic dismissals only require

that the student be informed of the nature of the faculty's dissatisfaction and that the

decision be "careful and deliberate." Id. at 626. In disciplinary dismissals, however,

more is required. See Pugel v. Board of Trs. of Univ. of Ill., 378 F.3d 659, 664 (7th

Cir. 2004) (citing Goss v. Lopez, 419 U.S. 565, 578 (1975)). The Seventh Circuit has

not set out what process is due in graduate school disciplinary dismissals, but it has

suggested that due process requires something "more extensive" than "oral or written

notice of the charges," "an explanation of the evidence the authorities have[,]" and an

opportunity to respond to the charges. See id. (citing Goss, 419 U.S. at 578)

(commenting on graduate school dismissals).

The Parties dispute whether Doe's dismissal was an academic or disciplinary

decision. Dean Hess argues that it was academic because Doe's misrepresentations

directly impacted his honesty, a trait that is—in Dean Hess's view—essential to the

practice of medicine. (Defs.' Br. Supp. Mot. Summ. J. 22, ECF No. 124; Hess Aff.

¶¶ 37–46, ECF No. 70-5.) Doe argues that the dismissal was disciplinary because

Dean Hess's dismissal letter did not indicate that Doe lacked "the attributes

necessary" to be a doctor, and because it allegedly mentioned that Doe was being

dismissed for violating IUSM guidelines. (Pl.'s Resp. Opp'n 29, ECF No. 128.)

The Court concludes that Dean Hess's expulsion decision—premised on the

misrepresentations in Doe's IUKSB application and not on the violation of any IUSM

guidelines—was an academic dismissal, and therefore, less process was due. Fenje is

on point. In that case, a doctor applied to be a resident at the University of Illinois

at Chicago, but did not disclose his prior dismissal from a hospital. Fenje, 398 F.3d

at 622–23. When the school's program director learned of the doctor's omission, the

director dismissed the doctor for his dishonesty. Id. at 623, 625. The Seventh Circuit

said that this was an academic dismissal because the director determined that the

doctor's lack of candor undermined "his future credibility as a source of information

concerning the care of seriously ill patients." Id. That connection "between [the

doctor's] lack of candor in the application process and his capacity to be trusted with

patient care clearly pushe[d] [the] decision into the realm of an academic dismissal."

Id.

Here, in applying to IUKSB, Doe described his prior disciplinary record in a way

that Dean Hess, correctly, believed was inaccurate. Like the program director in

Fenje, Dean Hess saw Doe's retelling as an indication that Doe was unfit to be a

doctor. As Dean Hess wrote in his affidavit:

Honesty and integrity are essential attributes for any student at IUSM

and for any person to become a doctor. Careful attention to detail and

accuracy in documentation created by a physician is a core

manifestation of these essential attributes . . . [w]e cannot admit to our

profession individuals who do not communicate honestly on academic

matters. Such a person cannot be trusted with the lives of patients.

(Hess Aff. ¶¶ 41–42, ECF No. 70-5.) This rationale shows that Dean Hess's decision

was "an academic judgment by [a] school official[], expert in the subjective evaluation

of medical doctors," that Doe did not demonstrate the personal attributes necessary

to be a physician. Fenje, 398 F.3d at 624 (citation omitted).

Doe complains that Dean Hess's decision letter did not explain that Doe lacked

the personal attributes necessary to be a doctor, or that such an opinion motivated

the dismissal. (Pl.'s Resp. Opp'n 29, ECF No. 128.) The letter explains only that Doe

was being dismissed for the misrepresentations in the IUKSB application. (Letter

from Jay Hess, Dean, IUSM, to John Doe 1 (June 16, 2020), ECF No. 37-21.)

While an expulsion letter's language can be probative on whether a decision is

academic or disciplinary, there is no requirement for Dean Hess to state any magic

words in his letter. The Court looks to see if the decision was academic or disciplinary,

and here, Dean Hess has produced evidence showing that the decision was based on

Doe's lack of honesty, (Hess Aff. ¶¶ 41–42, ECF No. 70-5), a trait that Dean Hess said

was essential to the practice of medicine, (id. at ¶ 45). Doe has no evidence to the

contrary. Doe tries to argue that his dismissal was based on an alleged violation of

IUSM rules. (Pl.'s Resp. Opp'n 29, ECF No. 128.) But he does not provide any support

for this, and despite Doe's assertion otherwise, the letter from Dean Hess does not

mention any disciplinary guidelines or rules. (Letter from Jay Hess, Dean, IUSM, to

John Doe 1 (June 16, 2020), ECF No. 37-21.)

Having concluded that Doe's expulsion was an academic decision, the Court now

assesses whether Doe was afforded due process. In an academic dismissal, due

process only requires that the student be informed of the nature of the faculty's

dissatisfaction, i.e., Hess's dissatisfaction, and that the ultimate decision to dismiss

be "careful and deliberate." Fenje, 398 F.3d at 626 (citing Horowitz, 435 U.S. at 85).

Doe argues that he had no notice of Dean Hess's dissatisfaction with the IUKSB

application. (Pl.'s Resp. Opp'n 29, ECF No. 128.) Indeed, Doe first learned of Dean

Hess's opinion on the matter in the dismissal letter. (Letter from Jay Hess, Dean,

IUSM, to John Doe 1 (June 16, 2020), ECF No. 37-21.) Doe says that since he was

not given notice of Dean Hess's dissatisfaction ahead of his dismissal, Doe was

deprived of due process. (Pl.'s Resp. Opp'n 29, ECF No. 128.) But—putting aside the

fact that the PMRC afforded him the opportunity to explain away the discrepancy in

his application, which he failed to do—Doe has provided no authority that he should

have been afforded additional notice beyond that contained in the dismissal itself that

it was based on the "conclusion that statements in support of your KSB application

do not accurately represent the discussion I had with you nor my letter to you dated

March 27, 2020." (Letter from Jay Hess, Dean, IUSM, to John Doe 1 (June 16, 2020),

ECF No. 37-21.) This is enough notice to satisfy the due process requirements for an

academic dismissal.

But Doe received more process than what was due. Dean Hess wrote to Doe and

explained to him that he was being dismissed for his misrepresentations in the

IUKSB application. (Id.) As noted, this dismissal letter gave Doe notice of Hess's

dissatisfaction and that Doe was being dismissed. Doe has cited no requirement that

the notice be prior to or separate from the dismissal itself. Yet, Dean Hess did tell

Doe that he needed to be an "exemplary citizen" in order to return to IUSM. (Doe

Dep. 107, ECF No. 71-10.) Being dishonest on his application was neither exemplary,

nor, in Dean Hess's mind, in keeping with the candor required of a doctor. Still,

despite having been forewarned, Doe wrote his application in a way that

mischaracterized his disciplinary status. In sum, Doe received more than sufficient

notice for an academic dismissal.

There is no genuine dispute that Dean Hess's decision was "careful and

deliberate." Dean Hess reviewed Doe's application, Dean Hess's March 27 letter,

Doe's response letter to the PMRC, and a letter sent by Doe's attorneys. (Email from

Jay Hess, Dean, IUSM, to Eric Weldy, Vice Chancellor for Student Affairs, IUPUI

(June 10, 2020), ECF No. 83-8.) Only after considering these documents, did Dean

Hess make his decision.

Although there is no evidence that Dean Hess consulted with other faculty

members like the decisionmaker in Fenje did, 398 F.3d at 623, Dean Hess had all of

the evidence in documentary form right in front of him and he was able to see the

inconsistency for himself. Dean Hess had the March 27 decision letter, which

outlined the conditions on Doe's eligibility to return to IUSM, and Dean Hess had

Doe's application, in which Doe claimed that Dean Hess had "fully authorize[d]" Doe's

return to IUSM "without limits or restrictions." (IUKSB Appl. 5, ECF No. 83-5.)

Further, Dean Hess had first-hand knowledge of his own discussions and

communications with Doe. Not only is there no requirement that the decisionmaker

consult others to meet the careful deliberation requirement, here any such

deliberations would not have provided Dean Hess with any relevant information not

already known to him through his unique personal knowledge. To Dean Hess, Doe's

misrepresentations were glaring and irrefutable.

Doe suggests, without authority, that the decision was not "careful and deliberate"

because Dean Hess's letter did not state that the decision was "careful and

deliberate." (Pl.'s Resp. Opp'n 29, ECF No. 128.) But no magic words are required;

the Court looks to the decision, not just the letter announcing it.

In sum, Doe has not shown that a reasonable jury could find a deprivation of due

process. Thus, the Court grants Defendants' Motion for Summary Judgment

regarding the § 1983 claims.

IV. Conclusion

For the foregoing reasons, Defendants' Motion for Summary Judgment, (Defs.'

Mot. Summ. J., ECF No. 122), is granted. Doe's Motion for Oral Argument, □□□□□□□

Mot. Oral Arg., ECF No. 129), and Defendants' Motion to Exclude Plaintiff's Damages

Experts or Limit Certain Opinions, (Defs.' Mot. Exclude, ECF No. 147), are denied

as moot. The Clerk is directed to enter final judgment.

SO ORDERED.

Date: 3/31/2022 5 f ye mit

JAMES R. SWEENEY I, JUDGE

United States District Court

Southern District of Indiana

Distribution via CM/ECF to all registered parties

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